Citation Nr: 0001876
Decision Date: 01/24/00 Archive Date: 02/02/00
DOCKET NO. 96-49 001 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for cancer, claimed to
be due to exposure to Agent Orange.
3. Entitlement to special monthly pension based upon being
housebound, after February 1996.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Michael E. Kilcoyne, Counsel
INTRODUCTION
The veteran had active military service from July 1962 to
July 1966.
A perfected appeal to the Board of Veterans' Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a notice of
disagreement in writing received within one year of the
decision being appealed and, after a statement of the case
has been furnished, a substantive appeal received within 60
days of the issuance of the statement of the case or within
the remainder of the one-year period following notification
of the decision being appealed.
The present case arises from an August 1996 rating action in
which service connection was denied for PTSD, and for cancer
on the floor of the mouth and tongue claimed as due to
exposure to Agent Orange. In that same rating action, the
veteran, who had been previously granted pension benefits,
was also awarded special monthly pension, paid at the
housebound rate. This additional pension benefit was
assigned effective from March 1995 to February 1996.
In a statement received from the veteran in September 1996,
he expressed his disagreement with the decision to deny
service connection benefits, and with the failure to pay
pension benefits at the housebound rate beyond February 1996.
A statement of the case regarding these matters was issued in
October 1996, and a substantive appeal, which addressed the
service connection claims, was received in November 1996. A
hearing at which the veteran and his wife testified was
conducted at the RO in January 1997, and the transcript of
the hearing is construed as the veteran's substantive appeal
regarding the matter concerning entitlement to special
monthly pension. Thereafter, a supplemental statement of the
case was issued in May 1998, and the matter was eventually
forwarded to the Board in Washington, DC.
FINDINGS OF FACT
1. VA medical personnel have diagnosed the veteran to have
PTSD, as a result of his experiences in air crash recovery in
the United States, and in air rescue missions in Vietnam.
2. Records from the predecessor of the U. S. Armed Forces
Center for Research of Unit Records, and the veteran's
service personnel records, reflect that the veteran was
assigned to a unit, attached to the USS Enterprise, whose
mission included the rescue of downed pilots.
3. The veteran's assertion that he has cancer, related to
exposure to Agent Orange in service, is not supported by any
medical evidence that would render the claim for service
connection for that disability plausible under the law.
CONCLUSIONS OF LAW
1. The veteran has submitted a well-grounded claim for
service connection for PTSD. 38 U.S.C.A. § 5107(a) (West
1991).
2. The veteran has not submitted a well-grounded claim for
service connection for cancer, claimed as secondary to Agent
Orange exposure. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection for PTSD
The threshold question to be addressed in a claim is whether
it is well-grounded. 38 U.S.C.A. § 5107 (West 1991); Gilbert
v. Derwinski, 1 Vet.App. 49 (1990). If it is not, the claim
must fail and there is no further duty to assist in its
development. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1
Vet.App. 78 (1990). Epps v. Gober, 126 F.3d 1464, 1469 (Fed.
Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct.
2348 (1998), Morton v. West, 12 Vet.App. 477, 480 (1999).
In order for a claim for PTSD to be well grounded, the
veteran must submit medical evidence of a current disability,
lay evidence (presumed to be credible at this stage of the
claim) of an in-service stressor, and medical evidence of a
nexus between service and the current PTSD disability. Cohen
v. Brown, 10 Vet.App. 128 (1997).
In this case, the veteran contends that he developed PTSD as
a result of his experiences in air rescue while serving on
board the USS Enterprise off the coast of Vietnam, as well as
his role in air crash recovery while serving in the United
States. A review of the available VA medical records includes
numerous outpatient records on which the veteran is diagnosed
to have PTSD. Of those which reflect the stressful events
believed to have precipitated that disorder, they show it was
the veteran's involvement in air rescue and crash recovery
missions which caused him to develop PTSD. Similarly,
several in-patient VA summaries, particularly those dated in
1995 and 1997, reflect that the veteran was diagnosed to have
PTSD, as a result of his participation in air/sea rescues.
Since there is medical evidence of the claimed disability,
evidence of an in-service stressor or stressors (i.e., the
veteran's accounts, which are presumed credible at this stage
of the claim), and medical evidence of a nexus between the
veteran's service and PTSD, he has submitted a well-grounded
claim of service connection for PTSD.
Service Connection for Cancer
With respect to this aspect of the veteran's appeal, he
contends that his cancer, which he believes affects his
larynx, as well as his mouth and tongue, was caused by his
exposure to Agent Orange during his Vietnam service.
Under applicable criteria, service connection may be granted
for disability resulting from disease or injury which was
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131 (West 1991). As with the veteran's claim for service
connection for PTSD, the threshold question is whether he has
presented a well-grounded claim. 38 U.S.C.A. § 5107 (West
1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If he has
not, the claim must fail and there is no further duty to
assist in its development. 38 U.S.C.A. § 5107; Murphy v.
Derwinski, 1 Vet.App. 78 (1990). This requirement has been
reaffirmed by the United States Court of Appeals for the
Federal Circuit in its decision in Epps v. Gober, 126 F.3d
1464, 1469 (Fed. Cir. 1997), cert. denied sub nom. Epps v.
West, 118 S. Ct. 2348 (1998). That decision upheld the
earlier decision of the United States Court of Veterans
Appeals (redesignated the United States Court of Appeals for
Veterans Claims, effective March 1, 1999), which made clear
that it would be error for the Board to proceed to the merits
of a claim which is not well grounded. Epps v. Brown, 9
Vet.App. 341 (1996).
The Court of Appeals for Veterans Claims has also held that,
in order to establish that a claim for service connection is
well grounded, there must be competent evidence of: (1) a
current disability (a medical diagnosis); (2) the incurrence
or aggravation of a disease or injury in service (lay or
medical evidence); and (3) a nexus (that is, a connection or
link) between the in-service injury or aggravation and the
current disability. Competent medical evidence is required
to satisfy this third prong. See Elkins v. West, 12 Vet.App.
209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet.App.
498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table). "Although the claim need not be conclusive, the
statute [38 U.S.C.A. §5107] provides that [the claim] must be
accompanied by evidence" in order to be considered well
grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
In a claim of service connection, this generally means that
evidence must be presented which in some fashion links the
current disability to a period of military service or to an
already service-connected disability. 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. § 3.303 (1998); Rabideau v. Derwinski,
2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App.
343 (1993).
Evidence submitted in support of the claim is presumed to be
true for purposes of determining whether it is well grounded.
King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of
medical diagnosis or causation, however, do not constitute
competent evidence sufficient to render a claim well
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).
As to the veteran's contention that he was exposed to Agent
Orange, which resulted in his developing the disability for
which he seeks service connection, the Board observes that a
veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era and
has a disease listed at 38 C.F.R. § 3.309(e), shall be
presumed to have been exposed during such service to a
herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. The last date on which such a veteran
shall be presumed to have been exposed to a herbicide agent
shall be the last date on which he or she served in the
Republic of Vietnam during the Vietnam era. "Service in the
Republic of Vietnam" includes service in the waters offshore
and service in other locations if the conditions of service
involved duty or visitation in the Republic of Vietnam. 38
C.F.R. § 3.307(a)(6)(iii).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 U.S.C.A. §
1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there
is no record of such disease during service, provided further
that the rebuttable presumption provisions of 38 U.S.C.A. §
1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or
other acneform diseases consistent with chloracne, Hodgkin's
disease, multiple myeloma, non-Hodgkin's lymphoma, acute and
subacute peripheral neuropathy, porphyria cutanea tarda,
prostate cancer, respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea), and soft-tissue sarcomas
(other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma,
or mesothelioma). 38 C.F.R. § 3.309(e). With respect to
establishing service connection for chloracne or other
acneform disease consistent with chloracne, it is also
necessary that it became manifest to a degree of 10 percent
or more within a year after the last date on which the
veteran was exposed to an herbicide agent during active
military service. 38 C.F.R. § 3.307(6)(ii).
The Secretary of Veterans Affairs has determined that there
is no positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. See Notice, 59 Fed. Reg. 341-346
(1994).
Notwithstanding the foregoing presumption provisions, which
arose out of the Veteran's Dioxin and Radiation Exposure
Compensation Standards Act, Public Law No. 98-542, § 5, 98
Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991,
Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United
States Court of Appeals for the Federal Circuit has
determined that a claimant is not precluded from establishing
service connection with proof of direct causation. Combee v.
Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9
Vet.App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120
F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171
(1998). See Brock v. Brown, 10 Vet.App. 155, 160-61 (1997).
Thus, the presumption is not the sole method for showing
causation. However, as noted above, where the issue involves
a question of medical diagnosis or causation as presented
here, medical evidence which indicates that the claim is
plausible is required to set forth a well-grounded claim.
Grottveit v. Brown, supra.
In this case, the record shows that the veteran was first
diagnosed to have cancer in December 1994. That cancer,
however, only effected the right side of the veteran's
tongue, and the floor of his mouth. These records did not
reflect that the condition affected the veteran's prostate,
lungs, bronchus, larynx, or trachea. The condition was also
not characterized as soft tissue sarcoma. (The term squamous
cell carcinoma was used.) Subsequently dated medical records
similarly fail to show the presence of any type of cancer,
other than that which was diagnosed in December 1994.
Moreover, none of the available medical records reflects that
any medical professional was of the opinion that the cancer
which the veteran did have was related to his service, or,
more particularly, to any in-service exposure to Agent Orange
that may have occurred.
Since the cancer located on the veteran's tongue and mouth is
not included among the diseases listed at 38 C.F.R.
§ 3.309(e), it is not deemed by VA to be etiologically
related to exposure to herbicide agents used in Vietnam.
Therefore, the regulatory presumption created by 38 C.F.R.
§ 3.309(e) does not apply in the veteran's case.
Furthermore, as the veteran has not submitted any probative
medical evidence which demonstrates a causal link between his
cancer and any exposure to herbicides in service, the Board
must conclude that the veteran has not met the initial burden
of presenting evidence of a well-grounded claim for service
connection, as imposed by 38 U.S.C.A. § 5107(a) (West 1991).
As claims that are not well grounded do not present a
question of fact or law over which the Board has
jurisdiction, the claim for service connection for a cancer
due to exposure to Agent Orange must be denied. See Epps v.
Gober, supra.
In reaching this decision, the Board notes that, prior to
April 5, 1999, VA's Veterans Benefits Administration (VBA)
Adjudication Procedure Manual, M21-1, Part VI, para. 7.20b,
contained a liberal interpretation of the regulations that
addressed the circumstances when exposure to a herbicide
could be presumed, stating that "unless there is affirmative
evidence to the contrary, a veteran who served on active duty
in the Republic of Vietnam during the Vietnam era is presumed
to have been exposed to a herbicide agent." In a Court
decision in McCartt v. West, 12 Vet.App. 164 (1999), however,
it was held that "neither the statutory nor the regulatory
presumption will satisfy the incurrence element of Caluza
where the veteran has not developed a condition enumerated in
either 38 U.S.C. § 1116(a) or 38 C.F.R. § 3.309(e)."
Therefore, in April 1999, the aforementioned section of the
VBA Manual M21-1 was revised to clarify that the presumption
of herbicide exposure under 38 C.F.R. § 3.307(a)(6)(iii) is
applicable only when considering presumptive service
connection for diseases specified in section 3.309(e). The
manual was thus brought in line with the statutory and
regulatory provisions in this regard.
In any case, even if the evidence were to demonstrate that
the veteran was exposed to Agent Orange or other herbicides
during service, as set forth above, in the absence of any
competent evidence linking the specific type of cancer he had
to that exposure, or any competent evidence reflecting that
the veteran has one of the diseases listed in 38 C.F.R.
§ 3.309(e), the veteran has failed to meet the threshold
requirement of submitting a well-grounded claim for service
connection for disability secondary to exposure to Agent
Orange.
Having concluded that the veteran's claim for service
connection for cancer is not well grounded, the Board does
note that there are medical records, associated with the
claims file, on which it is set forth that the veteran had
informed those treating him that he had cancer of the larynx.
(See November/December 1997 VA discharge summary, and an
April 1998 Psychiatric History provided by a private
physician. ) That is one of the particular types of cancer
for which there is a presumption, as to Vietnam veterans, for
both exposure to Agent Orange having occurred in service and
for entitlement to service connection. In this regard,
however, it must be pointed out that the mere transcription
in a medical record, of the veteran's statements that he has
a particular disease, is not the same as medical evidence
demonstrating that the veteran actually has that disease. It
is merely an expression of the veteran's assertions through
his physician, not the physician's own diagnosis or opinion.
Thus, there remains, in this case, an absence of competent
evidence reflecting that the cancer for which the veteran was
treated, is linked to his service, or to any exposure to
Agent Orange in service. Accordingly, there remains no basis
to award service connection for that disability. See Dolan
v. Brown, 9 Vet.App. 358, 363 (1996), citing LeShore v.
Brown, 8 Vet.App. 406, 409 (1995), wherein it was held that
medical history which is simply information provided by a
patient and recorded by a medical examiner, without any
foundation in previous medical records, does not satisfy the
evidentiary requirement of competent medical evidence in a
claim.
We recognize the veteran's belief that he has cancer of the
larynx. However, he is not a physician, and thus does not
have the professional expertise necessary to provide that
diagnosis. See, e.g., Voerth v. West, 13 Vet.App. 117, 120
(1999) ("Unsupported by medical evidence, a claimant's
personal belief, no matter how sincere, cannot form the basis
of a well-grounded claim."); Bostain v. West, 11 Vet.App.
124, 127 (1998) ("lay testimony . . . is not competent to
establish, and therefore not probative of, a medical
nexus"); Routen v. Brown, 10 Vet.App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge"), aff'd sub nom. Routen v.
West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S.
Ct. 404 (1998). See also Espiritu v. Derwinski,
2 Vet.App. 492 (1992); Moray v. Brown, 5 Vet.App. 211 (1993);
Grottveit v. Brown, 5 Vet.App. 91 (1993).
ORDER
To the extent that the veteran's claim for service connection
for PTSD is well grounded, thereby giving rise to a duty to
assist in its development, the appeal is granted.
Service connection for cancer, claimed as due to exposure to
Agent Orange, is denied.
REMAND
It has been determined, above, that the veteran has presented
a well-grounded claim of service connection for PTSD.
However, the United States Court of Appeals for Veterans
Claims has held that, once a PTSD claim has been determined
to be well grounded, it does not necessarily mean the claim
will be granted. As the Court has emphasized,
even though . . . the appellant has presented a
well-grounded claim for service connection for
PTSD, "eligibility for a PTSD service-connection
award requires" more; specifically, "(1) [a]
current, clear medical diagnosis of PTSD . . . ;
(2) credible supporting evidence that the claimed
in-service stressor actually occurred; and (3)
medical evidence of a causal nexus between current
symptomatology and the specific claimed in-service
stressor."
Gaines v. West, 11 Vet.App. 353, 357 (1998), citing Cohen,
supra, and Suozzi v. Brown, 10 Vet.App. 307 (1997) (emphasis
in original).
Furthermore, if the claimant did not engage in combat with
the enemy, or the claimed stressors are not related to
combat, then the claimant's testimony alone is not sufficient
to establish the occurrence of the claimed stressors, and his
testimony must be corroborated by credible supporting
evidence. Cohen, supra; Moreau v. Brown, 9 Vet.App. 389
(1996); Dizoglio v. Brown, 9 Vet.App. 163 (1996); West v.
Brown, 7 Vet.App. 70, 76 (1994). Moreover, service
department records must support, and not contradict, the
claimant's testimony regarding noncombat stressors. Doran v.
Brown, 6 Vet.App. 283 (1994).
As set forth above, the veteran has been diagnosed to have
PTSD, and the records on which this diagnosis is reflected
show that it is considered to be due primarily to the
veteran's participation in air rescue while stationed aboard
the USS Enterprise, and his involvement in crash recovery
while stationed in the United States. In regard to those air
rescue/crash recovery events that the veteran contends
precipitated his disability, he has provided some rather
precise information.
With respect to the incidents that occurred in the United
States, the veteran related that, while he was stationed at
Olathe Naval Air Station in Kansas, he was a member of the
Crash Crew. He described his duties as recovering the
remains of those whose planes had crashed. In this
capacity, the veteran indicated that he was involved in
approximately 7 crashes, and had to pick up the remains of
between 7 and 14 pilots/crew members.
The veteran's personnel records show that he received
"AIRMAN" training, which he apparently completed in
February 1963. They also show that he was stationed at
Olathe Naval Air Station between November 1962 and November
1964. His duties at that location, however, have not been
more precisely confirmed, and the record does not show that
any information regarding the events the veteran described as
taking place there was researched by the United States Armed
Services Center for Research of Unit Records (USASCRUR).
Since the veteran has been diagnosed to have PTSD, based, at
least in part, upon the events he described as taking place
at Olathe Naval Air Station, and since it would appear likely
that a record of lost pilots and planes at that location
would have been made, it is the Board's view that an attempt
should be made to verify these events, as well as any role
the veteran may have had in them.
With respect to the air rescue missions the veteran described
while a member of the Enterprise crew, he indicated that he
had been involved in 27 such missions, half of which required
him to man a machine gun on board rescue helicopters, and on
half of which he operated the winch that was used to pull the
downed pilots up to the hovering helicopter in which he was
riding He specifically indicated that he had occasion to
retrieve 4 pilots who had been shot down over land, and that,
in doing so, the helicopter in which he was flying came under
fire. It is not clear whether the rescue of those 4 occurred
on a single occasion, on four separate occasions, or in some
combination, but in any case, the veteran related that 2 of
the 4 were killed while they were being brought up to the
helicopter. These, he indicated, were the only two killed
out of the 27 rescue missions in which he was involved.
It has been confirmed that the veteran served on Board the
USS Enterprise, beginning some time prior to November 1965.
More particularly, he was assigned to Helicopter Support
Squadron One, with which he remained until the end of his
enlistment in July 1966. The Enterprise was involved in
launching air strikes against positions in North and South
Vietnam between December 1965 and June 1966, and it has been
confirmed that Helicopter Support Squadron One flew rescue
missions to recover downed pilots from the Enterprise. It
has also been confirmed that such rescue operations could
involve exchange of gunfire, between machine gunners on board
the rescue helicopters and forces below. Such general
information, however, does not establish, as fact, the
veteran's individual participation in rescue missions.
As with the events the veteran described as taking place in
Kansas, it would seem that there would have been records kept
of the rescue missions flown to recover downed airmen,
particularly over land where pilots being rescued were
killed. Thus, while the information that has been obtained
to date has been useful, an additional search for records
should be undertaken in order to attempt to confirm the
actual events the veteran has described while he served with
the USS Enterprise.
In addition to the foregoing, the Board observes that,
although the record discloses that the veteran has had
psychiatric treatment, including hospitalizations, which show
diagnoses of PTSD, he has never actually undergone a
comprehensive psychiatric examination in connection with his
claim. In the Board's view, after attempts are made to
confirm the events the veteran has described as causing PTSD,
he should undergo a VA examination to determine the
relationship, if any, between current psychiatric symptoms
and his specific claimed in-service stressors.
In regard to the veteran's claim for entitlement to
housebound benefits, the Board notes that the veteran was
awarded pension benefits, pursuant to the provisions of
38 U.S.C.A. § 1521, in an October 1994 rating action,
effective from July 1994. This was primarily based on the
impairment arising out of the veteran's abdominal aorta and
femoral artery grafting. In March 1995, the veteran
submitted an informal application for service connection for
cancer and PTSD. After reviewing evidence obtained in
connection with those claims, and, in particular, that
evidence which showed the veteran's treatment for cancer, the
RO awarded the veteran special monthly pension, paid at the
housebound rate, in an August 1996 rating action. Payment of
pension benefits at this housebound rate, however, was made
effective only from the date of the veteran's claim in March
1995 to February 1996. The veteran now seeks to have his
pension benefits continued at the housebound rate.
Under applicable criteria, special monthly pension at the
housebound rate is payable to a veteran who is entitled to
pension under 38 U.S.C.A. § 1521, but while not in need of
regular aid and attendance, does have a single permanent
disability rated 100 percent disabling under the Schedule for
Rating Disabilities, together with (1) additional disability
or disabilities independently ratable at 60 percent or more,
separate and distinct from the permanent disability rated as
100 percent disabling and involving different anatomical
segments or bodily systems, or (2) is permanently housebound
by reason of disability or disabilities. The latter
requirement is met when the veteran is substantially confined
to his or her dwelling and the immediate premises or, if
institutionalized, to the ward or clinical areas, and it is
reasonably certain that the disability or disabilities and
resultant confinement will continue throughout his or her
lifetime. 38 C.F.R. § 1521(e); 38 C.F.R. § 3.351(d).
Given that the RO's initial award of special monthly pension
at the housebound rate was for only a specific time period,
which time period had already lapsed prior to the date the RO
made the decision to award that benefit, it would appear that
the RO had not concluded the veteran had a permanent
disability rated at 100 percent, or that the veteran was
permanently housebound. Therefore, the basis for that
initial award is unclear. Nevertheless, the records
currently before the Board reflect that the veteran has
numerous diagnosed disabilities. These include neuropathy,
diverticulosis, internal hemorrhoids, peripheral arterial
disease, alcohol dependence, dysthymia, PTSD, colitis,
bronchitis, hypertension, degenerative joint disease,
gastroesophageal reflux disease, cervical radiculopathy,
peripheral vascular disease, and chronic obstructive
pulmonary disease. Were any of these to be permanently rated
100 percent under the Schedule for Rating Disabilities, and
also found to be sufficiently distinct from the status post
abdominal aorta and femoral artery grafting currently rated
as 60 percent disabling, the criteria for payment of pension
at the housebound rate would be met.
It does not appear from the record that the RO has considered
whether any disability, other than status post abdominal
aorta and femoral artery grafting, might cause sufficient
impairment to warrant a 100 percent schedular rating.
Moreover, even if consideration has been given to that
question, it is clear that the veteran has not been informed
of any of the criteria by which a 100 percent schedular
rating could be assigned for his various disabilities. In
view of that omission, the veteran has not been given
adequate information from which to make cogent appellate
argument. In order to safeguard his procedural rights in
this regard, it will be necessary to return the case to the
RO so that these matters may be addressed.
Furthermore, in order to more precisely identify the
disabilities the veteran currently has, as well as to
understand how they relate to the question of whether they
cause the veteran to be substantially confined to his
dwelling and the immediate premises, a current examination of
the veteran would be most useful.
Under the circumstances described above, the veteran's claims
for service connection for PTSD and entitlement to pension
benefits paid at the housebound rate, are remanded to the RO
for the following:
1. The RO should contact any appropriate agency,
including the United States Armed Services Center
for Research of Unit Records, 7798 Cissna Rd.,
Suite 101, Springfield, VA 22150-3197, to attempt
to verify those events the veteran has described
as precipitating PTSD, and whether the veteran
engaged in combat. In particular, any available
documentation should be obtained regarding the
activities of Helicopter Support Squadron One
aboard the USS Enterprise between December 1965
and June 1966, as well as the veteran's particular
role in that unit. In addition, information
should be obtained regarding the circumstances of
fliers from the USS Enterprise downed in or near
Vietnam between December 1965 and June 1966,
particularly whether any were downed over land,
whether any such downed airmen were rescued (or
rescues were attempted) by the Helicopter Support
Squadron One, and whether any of those that may
have been downed over land were killed during a
rescue attempt by Helicopter Support Squadron One.
Any information regarding the veteran's
participation in any such events should also be
provided, if possible. In addition, it should be
determined whether there were any fatal crashes of
planes, particularly Navy planes, at Olathe,
Kansas, Naval Air Station while the veteran was
stationed there between November 1962 and about
November 1964, and whether the veteran
participated in the recovery of those killed in
any such crash. Moreover, if, as a result of any
development undertaken by this Remand, it would be
logical to contact other agencies to establish the
occurrence of a stressful event, or to verify
other events, that development should be
accomplished.
3. Next, the RO must make a specific
determination, based upon the complete record, as
to whether the veteran was exposed to a stressor
or stressors in service, and if so, the nature of
the specific stressor or stressors. If the RO
determines that the record establishes the
existence of a stressor or stressors, the RO must
specify what stressor or stressors in service it
has determined are established by the record.
4. Then, the veteran should be afforded a VA
psychiatric examination. The purpose of this
examination will be to determine whether the
complete record supports a diagnosis of PTSD. If
the veteran is found to have PTSD, the examiner
should express an opinion for the record as to
whether the veteran's claimed stressor(s) from his
military service are etiologically related to any
current PTSD. The examining physician should
specifically identify which stressor(s) are linked
to any diagnosed PTSD, with reference to the
stressor(s) determined by the RO to be established
by the record. All tests deemed necessary by the
examiner must be conducted, and the clinical
findings and reasoning which form the basis of the
opinions requested should be clearly set forth.
In the event the examiner finds that the veteran
does not have PTSD, he or she should reconcile
that conclusion with that of other physicians who
may have differed with it. The claims folder and
a copy of this Remand must be made available to
the examiner prior to the examination in order
that he or she may review pertinent aspects of the
veteran's service and medical history. A notation
to the effect that this record review took place
should be included in the examination report.
5. The RO should contact the veteran and ask him
to identify those places at which he has received
any medical treatment since 1997. After obtaining
any appropriate authorization, the RO should
attempt to obtain and associate with the claims
file, copies of any records of such treatment so
identified that have not already been made part of
the record.
6. Next, the veteran should be scheduled for a VA
general medical examination, the purpose of which
is to determine the nature and extent of those
disabilities currently afflicting him. Each such
disability should be clearly identified, together
with the symptoms related to that particular
disability. In addition, the examiner should
comment as to whether, in his or her opinion, any
of the veteran's disabilities, or any combination
of his disabilities, render him substantially
confined to his or her dwelling and the immediate
premises, and whether it is reasonably certain
that the disability or disabilities and resultant
confinement will continue throughout the veteran's
lifetime.
7. Upon completion of the above, the RO should
review the evidence and ensure that all of the
foregoing development actions have been conducted
and completed in full. If any development is
incomplete (for example, if any requested opinions
have not been provided), appropriate corrective
action should be taken.
8. Next, the RO should review the evidence of
record and enter its determination as to whether
service connection for PTSD is warranted, and
whether the veteran satisfies the criteria for an
award of special monthly pension paid at the
housebound rate. If any decision remains adverse
to the veteran, the RO should issue a supplemental
statement of the case to the veteran and his
representative, addressing all evidence added to
the record since the last supplemental statement
of the case was issued in 1998. Moreover, if the
veteran's claim for pension benefits paid at the
housebound rate continues to be denied, the
supplemental statement of the case should include,
for each disability the veteran has, and for which
a 100 percent schedular rating could, under the
Rating Schedule, be assigned, the criteria that
must be met for that rating. After providing a
reasonable opportunity to respond, the case should
then be returned to the Board for further review.
Although no action is required of the veteran until he
receives further notice, he has the right to submit
additional evidence and argument on the matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet.App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals